EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, September 29, 2012

Forfeit Victory: Supreme Court Of Kansas Refuses State's Attempt To Carve Out Different Forfeiture Rule For DV Cases

As I have noted before, in Giles v. California, the Supreme Court made several references to the interplay between the doctrone of forfeiture by wrongdoing and domestic violence. In their concurring opinion, Justices Souter and Ginsburg noted that

Examining the early cases and commentary, however, reveals two things that count in favor of the Court's understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say, in a fit of anger. 

Meanwhile, in his plurality opinion, Justice Scalia pointed out that

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges,...nothing more than "knowledge-based intent."

So, in Giles, did the Court "carve out a different rule for domestic violence cases", as the State argued in State v. Belone, 2012 WL 4227635 (Kan. 2012)? According to the Supreme Court of Kansas, the answer is "no."

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September 29, 2012 | Permalink | Comments (5) | TrackBack (0)

Friday, September 28, 2012

Call Me: Court Of Appeals Of Utah Finds Husband's 276 Calls To Wife Triggered Forfeiture By Wrongdoing

Based upon acts allegedly committed by a husband against his wife and daughter, the husband is charged with aggravated kidnapping, aggravated assault, and domestic violence in the presence of a child. Immediately after the incident leading to these charges, the wife calls the police, who photograph the scene of the crime and the injuries suffered by the wife, who also gives two witness statements to the police. As a result of the crimes charged, the court enters a no-contact order against the husband, who nonetheless calls the wife 276 times in advance of trial. When the husband's trial commences, the wife invokes the spousal testimonial privilege and refuses to testify against the husband. Can the prosecition now introduce the wife's statements to the police under the doctrine of forfeiture by wrongdoing? According to the recent opinion of the Court of Appeals of Utah in State v. Zaragoza, 2012 WL 4450360 (Utah App. 2012), the answer is "yes."

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September 28, 2012 | Permalink | Comments (2) | TrackBack (0)

Thursday, September 27, 2012

Friendship Request, Take 2: Court Of Appeals Of Utah Finds District Court Improperly Deemed Facebook Screenshots Inadmissible

In a custody dispute, a doctor testifies on behalf of the father, and the court eventually grants temporary custody of the child to the father, and, following a hearing, orders joint legal and joint physical custody of the child to the father and the mother. The mother thereafter appeals and claims that the district court erred by precluding her from introducing screenshots from Facebook that allegedly revealed that that the doctor and one of the father's attorneys had a friendship that, if established, would cast doubt on the impartiality of the doctor's recommendations. How should the court rule? Let's look at the recent opinion of the Court of Appeals of Utah in Black v. Hennig, 2012 WL 412112 (Utah App. 2012).

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September 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 26, 2012

Friendship Request: Supreme Court Of Kentucky Finds Jurors Being Facebook "Friends" With Victim's Mother Not Per Se Prejudicial

A defendant is charged with murder and related crimes. While the jury is being selected, two prospective jurors indicate that they do not know the victim, her family, or the circumstances of the case. After the jury convicts the defendant of the crimes charged, it is revealed that the jurors were in fact Facebook "friends" with the victim's mother during the defendant's trial (despite one of the jurors denying that she even had a Facebook account). What should the court do? Let's look at the recent opinion of the Supreme Court of Kentucky in Sluss v. Commonwealth, 2012 WL 4243650 (Ky. 2012).

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September 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

Memory Loss: Court Of Appeals Of Louisiana Deems Officer Who Was Shot & Had Stroke "Unavailable"

Similar to its federal counterpartLouisiana Rule of Evidence 804(b)(1) provides a hearsay exception for 

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

And, similar to its federal counterpartLouisiana Rule of Evidence 804(b)(1) only applies if a witness is "unavailable." So, let's say that a police officer investigates a car accident, gives a deposition, and then is shot and suffers a stroke. If the gunshot and stroke limit the officer's ability to remember the accident, is he "unavailable" for Rule 804 purposes? Let's take a look at the recent opinion of the Court of Appeal of Louisiana, First Circuit, in Walley v. Vargas, 2012 WL 4320233 (La.App. 1 Cir. 2012).

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September 25, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2012

Foreign Affairs: 9th Circuit Finds Foreign Record Certification Not "Testimonial" For Confrontation Clause Purposes

Federal Rule of Evidence 902(11) provides that the following is self-authenticating:

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, is a Rule 902(11) certification "testimonial," meaning that the preparer of such a certification must testify at a criminal trial to satisfy the Confrontation Clause? And what about a certification for a foreign record? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Anekwu, 2012 WL 4125861 (9th Cir. 2012).

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September 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 23, 2012

Make Me Whole, Take 11: Court Of Appeals Of Minnesota Finds No Problem With Exclusion Of Victim's Conviction

I have done ten prior posts (hereherehereherehereherehereherehere, and here) about how Minnesota courts have completely botched their analysis of Minnesota Rule of Evidence 609(a)(1). In my most recent post on the subject, I noted how Minnesota courts have made it so that a prior felony conviction that is not more than ten years old will (almost) always be admissible against a criminal defendant, regardless of whether the underlying crime has anything to do with witness honesty. So, what happens when it is a criminal defendant who wants to impeach a witness for the prosecution (and specifically the victim) under Rule 609(a)(1)? Let's look at the recent opinion of the Court of Appeals of Minnesota in State v. Meeks, 2012 WL 4052371 (Minn.App. 2012), to see Minnesota's latest miscarriage of justice.

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September 23, 2012 | Permalink | Comments (0) | TrackBack (0)